Another Day, Another Horrible Ruling That Undermines The First Amendment And Section 230

from the and-wtf-california dept

Not sure what’s going on in California, but it’s been suddenly issuing a bunch of really bad rulings concerning Section 230 of the CDA (the most important law on the internet). As we’ve explained many times, Section 230 says that online services cannot be held liable for actions of their users (and also, importantly, that if those platforms do decide to moderate content in any way, that doesn’t impact their protections from liability). This is massively important for protecting free speech online, because it means that platforms don’t have to proactively monitor user behavior out of fear of legal liability and they don’t feel the need to over-aggressively take down content to avoid being sued.

Over and over again the courts have interpreted Section 230 quite broadly to protect internet platforms. This has been good for free speech and good for the internet overall (and, yes, good for online companies, which is why some are so against Section 230). But, as we’ve been noting, Section 230 has been under attack in the past year or so, and all of a sudden courts seem to be chipping away at the protections of Section 230. Last week we wrote about a bad appeals court ruling that said Section 230 did not protect a website from being sued over failing to warn users of potential harm that could come from some users on the site. Then, earlier this week, we wrote about an even worse ruling in San Mateo Superior Court (just a block away from my office…) exempting publicity rights from Section 230.

And now, Eric Goldman points our attention to an even worse ruling coming out of California state’s appeals court for the First Appellate district. In this ruling, the court determines that Yelp can be forced to delete reviews that the court found defamatory (though entirely based on a default judgment, where the defendant didn’t show up in court). In previous cases most courts have found that even if content is found to be defamatory, a third party website cannot be forced to delete it, because of the pesky First Amendment.

In this case, the court doesn’t care. The background of the case involves a lawyer, Dawn Hassell, who sued a former client, Ava Bird, who allegedly posted negative reviews of Hassell’s work. Hassell sued, Bird ignored, and the court ruled for Hassell as a default judgment. As part of this it also ordered Yelp to remove the reviews. Yelp protested. The court then twists itself into all kinds of questionable knots to ignore both Section 230 and the First Amendment. The court first questions whether or not Yelp can even make the First Amendment argument, seeing as it’s also claiming that it’s not the author of the content in question. Of course, that totally misses the point: it’s not necessarily just about the content in the review, but also Yelp’s First Amendment rights in presenting content on its website.

In order to claim a First Amendment stake in this case, Yelp characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board?a host to speakers, but in no way a speaker itself. Of course, Yelp may play different roles depending on the context. However, in this context it appears to us that the removal order does not treat Yelp as a publisher of Bird?s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.

But, uh, the administrator of a forum still has separate First Amendment rights in determining how they present things in their forum. That’s kind of how it works. As Eric Goldman notes:

What the hell is an ?administrator of the forum,? and what legal consequences attach to that status? We?re not talking about the free speech rights of a janitor with a mop. This case involves a curator of speech?and even if the curator is just ?administrating,? telling a curator how to administrate raises significant speech interests that deserve more respect than this court gave it.

The court then suggests that the First Amendment doesn’t apply because Yelp has no right to question a court.

To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree. Yelp?s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.

Yikes! That of course, ignores the actual issue at play — especially the fact that the finding of defamation was on default, rather than through an actual adversarial process.

But the really scary part is how the court gets around Section 230. Goldman refers to it as “jujitsu” and that’s a pretty apt analogy:

Yelp argues the authority summarized above establishes that the removal order is void. We disagree. The removal order does not violate section 230 because it does not impose any liability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.

Okay… but then it’s ordering Yelp to remove the reviews, despite being a non-party. And if Yelp does not remove the reviews, then it’s in contempt of court, which means that yes, the court is absolutely applying liability. But, no, says the court, because [reasons].

If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court.

Got that. It’s not liability because it’s “a different type of liability.” WHAT?!? Where in the law does it say that “a different type of liability” (with no clear definition) is allowed? The court clarifies by muddying the waters some more:

In our opinion, sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.

This makes no sense at all.

Separately, the court keeps relying on the fact that Yelp itself was not sued by Hassell, and that all other cases involved service providers that were parties to the case. But that leads to ridiculous results:

As we have pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable for Bird?s tort. The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider?s Web site.

But under that standard, the court has just offered up a huge hole to avoid Section 230: just don’t name the service provider, and then you can force the service provider to take down the content. If that stands, very bad things will happen as a result. As Goldman points out in response to this, the court is simply wrong:

So the court is flat-out wrong. While I believe it?s correct that none of the cases were posed as contempt proceedings, the actions in both Blockowicz and Giordano also came after lower court findings of defamation. And in any case, WTF? Is the court saying that Section 230 preempts a direct lawsuit against a UGC site seeking injunctive relief, but it?s totally OK to reach the same result by not naming the UGC site in the lawsuit and then enforcing an injunction via contempt proceedings?

Goldman goes on to note how this ruling will create all kinds of mischief opportunities:

Step 1: sue the content poster for defamation in California state court. Do not sue the UGC site because (a) they are immune under Section 230, or (b) they might decide to fight substantively.

Step 2: take advantage of loose service of process rules and or otherwise hope the poster doesn?t appear in the case. For example, non-California residents aren?t likely to fight in a California court even if they get notice.

Step 3: get a default judgment finding defamation. If the user does make an appearance, a stipulated judgment with the user could reach the same result.

Step 4: seek an injunction requiring removal by the UGC site. Once the judge accepts the service of process and concludes the defendant didn?t show, the judge will probably do just about whatever the plaintiff asks. With the default judgment, the plaintiff can then use the coercive effect of contempt to force the UGC site to remove the content so long as the UGC site is under California?s jurisdictional reach?which most UGC sites are.

Voila! A right to be forgotten in the US, despite the First Amendment and Section 230.

As an added bonus, in the same lawsuit, the plaintiff can target multiple items of unwanted content by claiming it?s also written by the defendant or someone working in concert with the defendant. For example, I don?t believe it was ever confirmed that Birdzeye and JD are the same person, but consistent with the less-stringent approach deployed by judges when faced with default proceedings, the court treats both reviews as if the author(s) of the opinions was in court. If, in fact, JD is a different person, then Hassell successfully scrubbed JD?s content without ever suing the actual author or serving proper notice on the author. As you can see, there?s a great collateral damage potential here.

Goldman also warns that this ruling may not be easy to overturn. Yelp can (and should) appeal to the state Supreme Court, but there’s no guarantee it will take the case. There are legislative solutions, but those are unlikely as well. But for the time being, this ruling is a ticking time bomb. It can and will be abused. We see so many attempts to censor content by abusing copyright law, and now California has given people a playbook for how to abuse defamation law to do the same thing.

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Comments on “Another Day, Another Horrible Ruling That Undermines The First Amendment And Section 230”

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TKnarr (profile) says:

Section 230 wasn’t designed to allow an online forum to avoid obeying a court order, it was designed to force a plaintiff to go after the actual author of the material rather than the online forum. The plaintiff did so in this case. And it won according to the rules set by the court. It may be a win on a technicality by our standards, but the defendant had notice of the suit and declined to contest it so the win is valid (unlike the cases where the plaintiff tries to get a judgment without ever identifying or serving the actual defendant). Section 230’s over and done with. Now the question is whether the court has the authority to order defamatory material removed, which there’s no argument it does. The only question Yelp can raise is whether the court should properly first order the defendant to remove the material and only order Yelp to remove it for him if he doesn’t comply. If you look back at case law, there’s a long string of decisions saying that yes the courts can order a non-party to remove (to the best of their ability) material that’s been found to be defamatory by the court. Section 230 doesn’t (and doesn’t appear from the legislative history to be intended to) exempt online forums from that, only from being the target of the defamation suit in the first place.

Mike Masnick (profile) says:

Re: Re:

Section 230 wasn’t designed to allow an online forum to avoid obeying a court order

If that court order leads to liability based on the actions of a user, then, yeah, actually, it was designed to do exactly that.

Section 230’s over and done with.

Many other courts disagree with you.

Now the question is whether the court has the authority to order defamatory material removed, which there’s no argument it does.

There’s PLENTY of argument on that front. Not all courts agree, but many have found that an injunction is an inappropriate remedy for defamation due to 1A issues.

If you look back at case law, there’s a long string of decisions saying that yes the courts can order a non-party to remove (to the best of their ability) material that’s been found to be defamatory by the court.

There’s a long string of cases finding the exact opposite.

TKnarr (profile) says:

Re: Re: Re:

Except it doesn’t lead to any liability for any action of the user. It’s exactly the same situation as if someone had taken out a defamatory ad in a newspaper and the judge, after finding for the plaintiff, ordered the ad taken down. The newspaper may suffer penalties if it refuses to comply with the order, but that’s liability for it’s own action (refusing to comply with the order), not for anything the defendant did (having the defamatory ad run).

There’s certainly a long string of cases saying you can’t sue the site to get the material taken down, but that’s a different question from having the site take the material down after the poster’s been sued and the plaintiff won a ruling in their favor.

Anonymous Coward says:

Re: Re: Re: Re:

The newspaper is not going to go all around town and collect all the pages with the as in it. Just to help destroy your analysis. Now the judge could order the defendant post a retraction.

However the judges this case can’t find yelp accountable nor part of any punishment. I assume yelp allows posters to delete their own reviews. So even taking that the case was decide by default action the judge can only order the reviewer to remove it and hold him/her in contempt if they refuse to do it. Otherwise why didn’t the judge just order all ISPs to filter that one post for everyone visiting the site too. I mean if yelp won’t do it and by his own twisted logic he can force them to, then why can’t he force other companies that deal with traffic to and from that listing to comply?

Because they are not responsible for the poster’s article, see CDA 230 for more info.

TKnarr (profile) says:

Re: Re: Re:2 Re:

The newspaper can’t go out and collect all the papers already distributed, but it certainly can cancel the ad (regardless of whether there’s additional time left on the purchase) and not publish it in any more copies of the paper it prints. Just as the forum can’t remove any saved copies but certainly can remove the post so it won’t appear in the future. No liability attaches to that removal, the site can’t be sued for taking down the post in response to the court order.

That One Guy (profile) says:

Re: Re: Re:3 Re:

No liability attaches to that removal, the site can’t be sued for taking down the post in response to the court order.

But they can and will be punished if they leave it up, so the idea that there’s no liability involved is ridiculous. If there really is no liability involved then they could leave the comment up and not a thing would happen to them, but given that is not the case they are very much being held liable for a comment posted by another, thanks to a court case that they were’t involved in until the very end.

nasch (profile) says:

Re: Re: Re:

So the problem you have with this is:

A) it was due to a default judgment


B) the user should be compelled to take down the post, not Yelp


C) all of the above?

I don’t see the problem with A – a default judgment is just as valid as any other judgment as far as I know; it’s not the plaintiff’s fault if the defendant didn’t show up. I agree with B, which leads to an interesting question – what if a platform doesn’t provide a mechanism to delete posts? Techdirt, for example. I can’t be compelled to delete a defamatory comment on Techdirt because I simply have no way to do it. Could Techdirt be compelled to remove it in that case? Or should I just be jailed for contempt of court until I can convince you to do it for me?

Or is it totally inappropriate to compel anyone to remove the post, and the sanction should be monetary damages instead? What about ongoing damages due to the defamatory speech remaining there, is that a valid legal theory? Could I be fined $X per day in perpetuity?

SirWired (profile) says:

Re: Absolutely, TKnarr

Certainly it can be argued that SLAPP suits are too easy to file, the service process too loose, and default judgments resulting in removal orders too easy.

But it is unremarkable that if a court finds something defamatory, the courts can request that a publisher (in this case, Yelp) cease publishing it.

We aren’t talking a preliminary injunction here (that would be pretty bad), we are talking about a final ruling in a court case finding content to be defamatory. I don’t see 1st-amendment implications here at all. Defamatory content is not protected speech.

I agree that Yelp could argue that it needs to receive the request from the user instead of the court, but that is a distinction with very little difference.

Let’s apply this to a physical case: A billboard publisher accepts a billboard saying: “SirWired Stole $1M from starving orphans and spent it on hookers and blow” Now, I’m certainly going to sue whoever wrote such a thing. When I win, I’m absolutely going to get an order to have the billboard taken down! The information isn’t merely painful (like a news story reporting on the existence of the billboard), it’s just a flat-out lie. There’s no 1st-amendment implications here. It would be unremarkable for a judge to order the billboard company to take it down, even if there were months left on the display contract.

Anonymous Coward says:

Re: Re:

“Section 230 is over and done with.” This just shows you don’t give a shit about the legality of the ruling and just want to push libality onto Yelp. For what reason I don’t know or care, it’s just sad you tap danced all around that with some truely weak bullshit, rather then saying it loud and proud.

Anonymous Coward says:

So could this type of claimed 3rd party liability be used against other businesses?

Person A and person B have some type of argument in a store parking lot. The store isnt sued, but was just the location of the argument.

Can a judge then tell the store it has to spend millions rebuilding its parking lot to prevent arguments in it?

TKnarr (profile) says:

Re: Re:

No, he couldn’t. At least not in the general case. To order something like that, he’d have to have found the parking lot in gross violation of local codes resulting in the lot being a significant cause of the argument, but the likely ruling in that case would be that the plaintiff would have to add the store as a defendant first and then the court could address the claim.

The only way your scenario could realistically come about is if the judge found that the local codes required or encouraged a parking lot design that directly contributed to arguments in a way that wasn’t lawfully allowed and ordered the locality to change it’s codes to remove the unlawful aspect. The store’d then have to rebuild the parking lot to comply with the new local codes as a result, but that wouldn’t as far as the law is concerned be directly connected to that case.

Dave Cortright says:

"The removal order does not violate section 230 because it does not impose any liability on Yelp."

If I were Yelp, I would file a single sentence response:

Since “The removal order does not violate section 230 because it does not impose any liability on Yelp,” Yelp respectfully rejects the order and encourages the court to follow through on it’s promise to “not impose any liability on Yelp”.

Anonymous Coward says:

Re: Re: "The removal order does not violate section 230 because it does not impose any liability on Yelp."

That would be a completely separate liability.

How is it a liability for Yelp to have to remove something that was legally deemed defamatory? If they can’t withstand something like that, then they need to find a new business model.

That One Guy (profile) says:

Re: Re: Re: "The removal order does not violate section 230 because it does not impose any liability on Yelp."

That would be a completely separate liability.

Triggered by a comment created by the original poster, which they are now being held accountable for in the form of pending punishment if they don’t do something about it. You know, the very thing that 230 was designed to address, holding sites accountable for the content posted there by those that use the site, rather than holding the original poster responsible.

How is it a liability for Yelp to have to remove something that was legally deemed defamatory?

Via a default judgement, which is rather like winning a race because no-one else showed up. Anyone can win a case, no matter how weak it is if the other side is a no-show for whatever reason, so you’ll excuse me if I’m not too impressed by the fact that they won here and don’t put much weight behind the idea that just because they won it means the comment are actually defamatory.

As for how it’s a liability, they’re threatened with punishment for something posted by a user on their service, making them liable for what someone else has done. As noted in the article if the ruling stands then it becomes trivial to bypass the protections afforded sites under 230 simply by suing the original poster, not naming the service or involving them in the lawsuit, and then holding the site responsible for the content only at the very end. Something that wasn’t allowed under the law before(suing the site to get them to remove content posted by another) is now not only allowed it’s laughably easy since the site only gets to object once everything is done with on the legal end and their objections are easy to dismiss as a result.

That One Guy (profile) says:

Re: Re: Re:3 "The removal order does not violate section 230 because it does not impose any liability on Yelp."

So then, what defamatory content did they post that they can be held liable for? What defamatory content did they create that was found to be defamatory that they can be ordered to take down?

If someone posts content that is found to be defamatory by a court then the court can order them to remove it, but the entire point of 230 is to keep sites/services from being punished or otherwise held liable for the actions of their users.

If you’re trying to hold a site liable for comments or content posted by it’s users, then yeah, that’s kind of the entire point of the law. If all it takes to bypass the law is simply not naming the site/service in question until after the trial is over with then you essentially gut 230, as what wasn’t allowed before, suing a site to get content posted by another removed, holding them liable for the actions of their users is now perfectly fine.

That One Guy (profile) says:

Re: Re: Re:3 "The removal order does not violate section 230 because it does not impose any liability on Yelp."

Great, take up the default judgement with the person who lost do to not showing up, force them to take down the comments, don’t drag parties that are only involved at the very end into it and insist that they are now responsible.

Can’t find or contact them? Too bad, guess you’d better go back to court to charge them with contempt.

Anonymous Coward says:

i wonder how much longer it’s going to take before everyone in the USA actually realises that the country is gradually losing the Constitution, that the Amendments now are almost useless and that the country is moving ever closer to being run by a body that is as bad as that in Germany in the 1930s and 40s! almost every court rules away the rights of the people just so someone, anyone if not the government can get a win and the ability to lock up another lorry load of citizens!!

Anonymous Coward says:

It’s insane how almost all levels of all branches of California Government are tech’s worst conceivable enemy. Silicon Valley continuing to take the beatings because they don’t want to get involved in the politics that’s destroying their businesses is going to leech more and more value out of tech business.

That One Guy (profile) says:

Starting from the finish and working backwards

Given the legal gymnastics employed here I’d say it’s pretty clear that the court had already determined from the start the final ruling and were just trying to justify it and why the pesky law that does apply somehow doesn’t.

They’d decided ahead of time that yes, Yelp absolutely could be held liable for content posted on their service and the rest was just an attempt to explain why the law that protects Yelp doesn’t, including such gems as ‘We’re not forcing any liability on you, but you’ll be punished if you don’t remove the content.’

Anonymous Coward says:

Speaking of Defamatory Content

“As Goldman points out in response to this, the court is simply wrong…”

And, as Mike said:

“…suddenly issuing a bunch of really bad rulings concerning Section 230 of the CDA…”

Incompetent lawyer, Dawn Hassell, and some willfully ignorant justice (does this asshat have a name?) for the First Appellate district of California will deserve all of the public mocking and derision they elicit.

I can only hope to hear (with glee!) some wails of butt-hurt over Goldman’s and Masnick’s remarks.

Whatever says:

Rulings, judgements, and crying faces

“Over and over again the courts have interpreted Section 230 OVERLY broadly to protect internet platforms”


Let’s see. A default judgement is still an enforceable judgement. Your line of logic here seems to be that a site that MIGHT be protected by section 230 can somehow trump a court’s judgement. Yelp isn’t somehow special and able to ignore the courts.

Think of this as the revenge against anonymous posters. If you want to post anonymously, then you basically lose your right to appear in court, which leads to default judgements, which leads to this. When you push your free speech rights to their very limits, you pull the legal blanket off of other things. If you want to be entirely anonymous, the legal system has only one way to deal with you: default judgements.

This is also a clear result of section 230. Going after the site directly (or trying to get user information from the site) is a losing battle. The law has created the ultimate legal safe harbor that permits all sorts of slanderous, unsubstantiated claimed to go unchecked, and these “service providers” (who profit from those posts) can smirk and give everyone the legal middle finger. So the only way to address it is to do what has been done in this case: get a judgement, and then apply the judgement.

(oh, and this post was made right after “Anonymous Coward, Jun 9th, 2016 @ 1:50pm
Speaking of Defamatory Content” but will likely be censored until June11th or so. Techdirt engages in their own form of prior restraint).

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